In 2011, the governor of Florida signed the controversial Florida Firearm
Owners Privacy Act into law. The law, found in in
Florida Statutes 790.338, makes it illegal for a healthcare practitioner to enter information about
whether a patient owns a firearm when the practitioner knows that ownership
of a firearm is irrelevant to the patient’s medical care, safety,
or the safety of others.
The law was passed after some groups and Floridians become increasingly
wary about the information doctors collected at routine checkups and appointments.
Often times practitioners would ask about gun ownership during these appointments
and put the information in the patient’s record. The reasoning behind
the questions, particularly in pediatric appointments, was to ensure that
firearms were safely stored away from children.
Provisions of the Law and Challenge
Along with the prohibition of unnecessarily recording a patient’s
firearm ownership status, the new law provided penalties for doctors who
choose to ignore it. The penalties a doctor could face for breaking the
Restriction of the doctor's practice
Return of fees charged to a patient
Probation from practice
Suspension or revocation of the doctor’s license to practice medicine
As you can see, the penalties a doctor could face are quite severe. Afraid
that the new law would impede on the way they practice and their constitutional
rights, a group of doctors sued the state of Florida to have the law denounced
The doctors made two primary arguments in their case against the law. The
first argument was that the law was a violation of their First Amendment
rights to free speech under the U.S. Constitution. Their second argument
was that the law violated their due process rights under the Fourteenth
Amendment of the U.S. Constitution because the law was too vague to understand
and apply equally from one person to the next.
The first argument was denied by the court, and
the court ruled the law did not violate Florida doctors’ free speech rights. The court went over the various precedents that regulate when and how
laws can restrict speech. After reviewing and applying the previous decisions
on this issue, the court ruled that the provisions of the law simply regulated
professional conduct and had an incidental effect on speech. Historically,
states have the right to regulate professional conduct, even speech, under
what is known as a state’s police powers. This law fell within that
The second argument was also denied by the court. The doctors’ argument
was that the act was too vague and therefore violated their due process
rights. Under that theory, if a law is too vague to understand, than it
is unconstitutional to force people to obey it, or punish them for breaking
it. But the court flatly rejected this argument and said that the law
was clear enough to understand. To be too vague to pass constitutional
muster, the law would have to be unclear and difficult to understand.
At The Pittman Firm, we fight for victims of accidents and injuries. Our
legal practice is dedicated to ensuring that you are justly compensated
for your injuries.
Contact us to review your case, and we will provide you with your legal options.
See related blog posts:
Florida Courts: An Overview;
Civil Forfeiture Laws Getting Attention Across U.S.A.